Judge recommends death row inmate should get new trial in 1992 killings

Texas’ highest criminal court to have final say

Arthur Brown was convicted in the shooting deaths of four people during a 1992 drug deal in Houston.

Photo: booking mug /booking mug

HOUSTON — A Harris County judge has ruled that a death row inmate deserves a new trial because of false testimony by a Houston Police Department ballistics expert during a trial in 1993.

The Court of Criminal Appeals, the highest criminal court in Texas, will ultimately decide whether Arthur Brown, 46, will get a new trial in the shooting deaths of four people during a drug deal in 1992, Brown’s lawyer said Friday.

Attorney Paul Mansur said state District Judge Mark Kent Ellis ruled this month that ballistics examiner Charles Anderson testified falsely in 1993 about whether bullets found at a grisly murder scene matched two pistols connected to Brown.

“(Prosecutors) presented this false testimony as part of its attempt to tie these guns to Mr. Brown and his co-defendants,” Mansur wrote in court filings. He said police recovered two handguns in Tuscaloosa, Alabama, where Brown had dealings, then connected the guns to him through friends and family. Firearms experts with the Houston Police Department then connected the guns to the killings.

Brown was convicted of being part of a cocaine ring that was smuggling drugs to Alabama when six people were shot execution-style in a massive drug deal in Houston in 1992. Two of the people survived to testify against him and two other men, all of whom were convicted.

A decision by a judge to grant a retrial in a death penalty case is rare in Harris County. The decision was quietly handed down Dec. 19 after the issue was aired during a hearing in Ellis’ court in October. The ruling, a public document, has yet to be posted to the district clerk’s website, where court records are typically found.

Mansur confirmed the judge’s decision and referred questions about the case to public filings.

According to court records, Anderson, the ballistics examiner, testified unequivocally that two bullets from the crime scene came from a .357-caliber revolver and that four bullets came from a .38-caliber revolver. Both guns were recovered during investigations of Alabama drug dealers known to associate with Brown.

Under a recent Texas law designed to let defendants take advantage of recent developments in science, Brown was entitled to a retest, setting up a battle of experts that played out in front of Ellis. One of the firearms experts for the defense testified that the four bullets linked to the .38-caliber pistol were conclusively not from that specific gun. Another said the evidence was inconclusive — that it could not be determined either way.

“In sum, there is no evidence that supports Anderson’s opinion that the Charter Arms .38 Special fired (the four bullets),” Mansur wrote in court filings.

Both experts also said they could not determine if the other two bullets came from the .357-caliber gun.

In their responses, Harris County prosecutors said Anderson’s findings in 1993 were verified by a second Houston police firearms examiner who agreed with his conclusions.

Assistant District Attorney Joshua Reiss said Anderson’s trial testimony was correct and truthful and that it reflected what he actually observed during his ballistics examination. Raymond Klien, another examiner, confirmed the accuracy of Anderson’s findings.

“The record considered by the (judge) during the ... hearing is inconclusive, muddy, disputed and ambiguous and does not support a finding that Anderson’s testimony was ‘false,’” Reiss said in court filings.

He noted that “false testimony” is different from perjury, which triggers different standards.

Experts found the judge’s ruling perplexing because disagreements among experts are common but seldom lead to retrials.

“This happens all the time,” said Geoffrey Corn, a professor at South Texas College of Law Houston. He said experts often disagree about whether a particular bullet can be traced to a specific gun. “It doesn’t mean they’re lying, it just means they reached a different expert opinion.”

Reiss, the prosecutor, also argued that the issue was not significant because the jury was able to consider a plethora of evidence that emerged during Brown’s trial more than 20 years ago.

In 1992, Brown and two other men were working together to move cocaine from Houston to Alabama. The smugglers decided to cut out the middlemen and were all later convicted of fatally shooting four people, including a pregnant woman, and wounding two others June 20, 1992.

Brown, with Marion Dudley and Tony Dunson, arranged to buy 6½ pounds of cocaine from Rachel Tovar and her estranged husband, Jose Tovar, according to court records.

When the three went to Tovar’s home for the deal, they tied up the couple and four other people — friends and neighbors who were in the house coincidentally. All six were shot in the head. Four people were killed: Jose Tovar; 19-year-old Jessica Quinones, who was seven months pregnant; Audrey Brown, 21; and 17-year-old Frank Farias. Rachel Tovar survived, along with family friend Nicholas Cortez; they told police there were two shooters.

Cortez identified Dudley as the man who shot him and Jose Tovar with a .357-caliber Magnum handgun, according to court records. Dudley was sentenced to death and has been executed. Dunson was convicted and sentenced to life in prison.

Prosecutors said Brown used the .38-caliber revolver to shoot Farias, Audrey Brown, who was not related to Arthur Brown, and Quinones.

After a three-month trial in 1993, Brown was sentenced to death. Afterward, his trial lawyer said the most damning piece of evidence was Brown’s sister admitting that he told her that he had shot six people.

The sister also told police she was missing a pistol, which was the same brand as the .38-caliber revolver that prosecutors said Brown used. Brown’s sister did not know the serial number of her lost gun, so it could not be established if that gun, a snub-nosed revolver made by Charter Arms and later found next to a homicide victim in Alabama, was originally hers. Prosecutors said it was likely.

In the most recent appeal, prosecutors argue that jurors were able to consider that confession, that he told his sister he had to go away and was tired of the killings.

The original jury also listened to testimony that he hurriedly fled Houston in the immediate aftermath and gave his sisters $1,000 to drive his van across state lines in the middle of the night carrying narcotics.

Prosecutors also noted that he was identified as being at the home where the capital murders were committed while holding a gun, that an eyewitness identified him as the man who cut up bedsheets to bind the victims, and that hours after the shooting one of his sisters saw him in a room where stacks of money were being counted.

Defense pleadings poke holes in all of those assertions, most notably claiming Brown’s sister was interrogated for 10 hours and intimidated by police into giving false answers. Brown’s defense attorneys also say there is evidence that the eyewitness testimony was coerced.